State v. . Stephenson
10 S.E.2d 819
N.C.
1940
Check Treatment
WiNBORNE, J.

Defendant, in the main, stresses for error, and properly so, the refusal of the court: (1) to grant his motions under C. S., 4643, for judgment of nonsuit on the first count; and (2) to set aside the verdict for that the complaint in civil action and synopsis of argument of counsel, who was prosecuting the case on behalf of the State, were handed to and taken by the jury to its room upon retiring to deliberate upon the case.

1. In considering motion for judgment of nonsuit under C. S., 4643, the general rule as stated in S. v. Johnson, 199 N. C., 429, 154 S. E., 730, and in numerous other decisions of this Court is that “if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the ease should be submitted to the jury.” Eut where there is merely a suspicion or conjecture in regard to the charge in the bill of indictment against defendant, the motion for judgment of nonsuit will be allowed. S. v. Johnson, supra, and cases cited.

The charge in the first count is made under the provisions of O. S., *264 4369, as rewritten in Public Laws 1937, chapter 248. This statute prescribes punishment for “Any person who shall willfully and knowingly present or cause to be presented a false or fraudulent claim, or any proof in support of such claim, for the payment of a loss, or other benefits, upon a contract of insurance; or prepares, makes or subscribes to a false or fraudulent account, certificate, affidavit or proof of loss, or other document or writing, with intent that the same may be presented or used in support of such claim. . . .” The gravamen of an offense under this statute is the “willfully and knowingly” presenting “a false or fraudulent claim,” or false or fraudulent proof of claim “for the payment of a loss, upon a contract of insurance.”

The word “willfully” as used in this statute means something more than an intention to commit the offense. It implies committing the offense purposely and designedly in violation of law. S. v. Whitener, 93 N. C., 590; Foster v. Hyman, 197 N. C., 189, 148 S. E., 36. The word “knowingly” as so used, means that defendant knew what he was about to do, and, with such knowledge, proceeded to do the act charged. These words combined in the phrase “willfully and knowingly” in reference to violation of the statute, mean intentionally and consciously. As used in the present indictment it means that defendant for purpose of collecting insurance intentionally made a false claim as to the value of the tobacco burned, with knowledge and conscious of the fact that the claim was false and fraudulent. The burden was on the State to offer evidence tending to show, or from which the jury might reasonably infer, that the claim for the value of the tobacco burned was false, and that defendant knew it was false, and, with such knowledge, proceeded to make claim for payment of insurance thereon.

Applying these principles, does the evidence offered meet these requirements? We do not think so. We are of opinion that the evidence does not rise above the dignity of conjecture or suspicion — if so much may be conceded.

In the proof of loss filed by defendant he asserted that the cash value of the tobacco burned was $2,882.79. In the complaint in the civil action, though forbidden by statute to be used against defendant, O. S., 533, yet admitted in evidence, without objection, defendant alleges that the value of the tobacco burned was $2,882.79. It is true that there is oral testimony to the effect that defendant said that “there were 4,600 sticks of his crop burned,” and that in the civil complaint he alleges “that said barn contained approximately 10,100 sticks of cured tobacco,” of the reasonable market value of “not less than” $2,882.79.

From this evidence the State argues that if 10,100 sticks of tobacco had reasonable market value of $2,882.79, then 4,600 sticks would have been worth only a proportionate part of that amount, and that if the *265 jury should find that defendant’s statement that 4,600 sticks is tbe amount be bad, tbe jury might reasonably find that defendant knew be was making a false claim. This argument loses sight of tbe allegation that tbe market value of tbe “approximately 10,100 sticks” bad tbe reasonable market value of “not less than” $2,882.79. As to bow much more, there is no evidence. These are contentions that may be logical in tbe debate on tbe trial of tbe civil action, but are not of sufficient certainty to justify the conviction of tbe crime charged against defendant.

2. In regard to tbe exception of defendant to tbe action of tbe court in refusing to set aside tbe verdict because of tbe fact that tbe jury took into its room tbe complaint in tbe civil action, and a sheet of paper on which was typed a synopsis of tbe argument of counsel for tbe State, as indicated in tbe statement of facts, even though tbe decision here turns on another point, we deem it opportune to call attention to these pertinent decisions of this Court: Watson v. Davis, 52 N. C., 178; Burton v. Wilkes, 66 N. C., 604; Williams v. Thomas, 78 N. C., 47; Posey v. Patton, 109 N. C., 455, 14 S. E., 64; Nicholson v. Lumber Co., 156 N. C., 59, 72 S. E., 86; S. v. Caldwell, 181 N. C., 519, 106 S. E., 139; Brown v. Buchanan, 194 N. C., 675, 140 S. E., 749.

These cases settle tbe principle that without consent of parties it is error to permit tbe jury to take such papers into tbe jury room, and to retain same while in its deliberations. In tbe present case tbe papers taken have especially objectionable features : (1) Tbe statute, C. S., 533, provides that “No pleading can be used in a criminal prosecution against tbe party as proof of fact admitted or alleged in it.” Though tbe complaint was admitted in evidence, without objection, which amounted to waiver of objection thereto, S. v. Mitchell, 119 N. C., 784, 25 S. E., 783; S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629; Cameron v. McDonald, 216 N. C., 712, 6 S. E. (2d), 497, it was not permissible for the jury to take it into tbe jury room without tbe consent of defendant, or of bis counsel. (2) Tbe notes of tbe argument of counsel were not evidence and, in fact, contained memoranda or argument bearing upon tbe failure of defendant to testify. C. S., 1799.

The judgment below is

Eeversed.